Cooper v. Cornerstone Chemical ( 2023 )

Case: 22-30312 Document: 00516673179 Page: 1 Date Filed: 03/10/2023
United States Court of Appeals
United States Court of Appeals
for the Fifth Circuit Fifth Circuit
FILED
March 10, 2023
No. 22-30312 Lyle W. Cayce
Clerk
Jeanelle D. Cooper, as the personal representative of Mr. James L.
Cooper, for substitution in place and stead of Mr. James L. Cooper,
deceased,
Plaintiff—Appellant,
versus
Cornerstone Chemical Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-1454
Before Jones, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Appellant Jeanelle D. Cooper, on behalf of the estate of her late
husband James Cooper, challenges the district court’s order granting
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-30312 Document: 00516673179 Page: 2 Date Filed: 03/10/2023
No. 22-30312
summary judgment for Appellee Cornerstone Chemical Company.1 For the
following reasons, we AFFIRM.
BACKGROUND
James Cooper worked for Cornerstone Chemical Company and its
predecessor companies from April 1991 until his termination in
February 2020. During his employment, Cooper was a member of United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial
and Service Workers International Union, Local USW 13-447. The
collective bargaining agreement (“CBA”) between Cornerstone and the
Union consequently governed Cooper’s employment.
Cooper became a full-time crane operator in 2010. In March 2018, he
received a seven-day suspension for “deliberate misrepresentation or
concealment of evidence.” Cornerstone then terminated Cooper in May
2018 after he struck his crane against a post near a fuel pump. Cornerstone,
however, revoked Cooper’s termination, and the parties entered a last
chance agreement (“LCA”). That agreement required compliance with “all
Cornerstone Chemical Company’s policies, procedures and work
standards,” and stated that any “violation[ ], no matter the severity, will
result in the termination of [Cooper’s] employment with Cornerstone
Chemical Company.” Cooper also agreed that, should Cornerstone
discharge him “for an alleged violation of the terms of this Last Chance
Agreement, [he] may not utilize the grievance and arbitration procedure
within the [CBA].”
1
Appellant also purports to challenge the district court’s denial of her motion for
reconsideration. But Appellant did not provide any argument as to this issue in her opening
brief. This issue is consequently forfeited. See DePree v. Saunders, 588 F.3d 282, 290 (5th
Cir. 2009) (issues raised for first time in reply brief are forfeited).
2
Case: 22-30312 Document: 00516673179 Page: 3 Date Filed: 03/10/2023
No. 22-30312
In January 2020, Cooper left a crane that was attached to an
approximately 3,000-pound pipe located sixty feet overhead unattended with
the engine running. The parties debate whether the pipe was “suspended”
or attached to a structure. Cornerstone terminated Cooper pursuant to the
LCA after a six-day investigation. The notice listed the following reasons:
You left the crane unattended with a load of approximately
3000 pounds suspended in the air;
You did not engage the services of a competent person to
determine if your decision to leave the area was safe;
You left the crane’s engine running; and
You did not enable the crane’s swing brake when you left
the scene.
Cooper in response brought this action, alleging Cornerstone fired
him because of his age, in violation of Federal and Louisiana law, and
breached the LCA and/or CBA, in violation of Section 301 of the Labor
Management Relations Act (“LMRA”). The district court granted
Cornerstone’s motion for summary judgment and dismissed Appellant’s
claims. It also denied Appellant’s motion for reconsideration. On appeal,
Appellant challenges the district court’s order granting summary judgment.
DISCUSSION
This court reviews a district court’s order granting summary
judgment de novo. Tango Transp. v. Healthcare Fin. Servs., LLC, 322 F.3d
888, 890 (5th Cir. 2003). Summary judgment is appropriate if no genuine
dispute of material fact exists and the moving party is entitled to judgment as
a matter of law. FED. R. CIV. P. 56(c). Here, the district court properly
granted summary judgment against Appellant.
3
Case: 22-30312 Document: 00516673179 Page: 4 Date Filed: 03/10/2023
No. 22-30312
A. Age Discrimination Claims
To establish a claim for age discrimination, a “plaintiff must show that
his age was the ‘but-for’ cause of his termination.” McMichael v. Transocean
Offshore Deepwater Drilling, Inc., 934 F.3d 447, 455 (5th Cir. 2019). The only
issue here is whether Appellant presented “substantial evidence indicating
that the proffered legitimate nondiscriminatory reason” for Cooper’s
termination was “a pretext for [age] discrimination.” Laxton v. Gap, Inc.,
333 F.3d 572, 578 (5th Cir. 2003).2
Cooper admitted during his deposition to having left the crane
running and unattended. Cornerstone argued in its motion for summary
judgment that this alone constituted a safety violation and thus a terminable
offense under the LCA. Appellant did not attempt to rebut this assertion
until her motion for reconsideration. The district court deemed this
argument forfeited. We agree. See U.S. Bank NA v. Verizon Comms., Inc.,
761 F.3d 409, 426 (5th Cir. 2014) (“This court will typically not consider an
issue or a new argument raised for the first time in a motion for
reconsideration in the district court.”). And Appellant’s non-forfeited
pretext arguments that could conceivably extend to this violation are
meritless.
Because Appellant has failed to rebut Cornerstone’s legitimate,
nondiscriminatory reason for firing Cooper, Appellant’s age discrimination
claims fail. See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir.
2
“Because the [Louisiana Age Discrimination Employment Act] is identical to the
[ADEA],” the same analysis applies to Appellant’s federal and state law discrimination
claims. Robinson v. Bd. of Supervisors for the Univ. of La. Sys., 225 So.3d 424, 431 (La. 2017)
(internal quotation marks and citation omitted).
4
Case: 22-30312 Document: 00516673179 Page: 5 Date Filed: 03/10/2023
No. 22-30312
2001) (“The plaintiff must put forward evidence rebutting each of the
nondiscriminatory reasons the employer articulates.”).
B. LMRA Claim
Section 301 of the LMRA provides an employee a federal cause of
action against both his employer for breach of a CBA and his union for breach
of the duty of fair representation. Bache v. Am. Tel. & Tel., 840 F.2d 283, 287
(5th Cir. 1988). “Because of the intricate relationship between the duty of
fair representation and the enforcement of a collectively bargained contract,
the two causes of action have become ‘inextricably interdependent’ and
known as a ‘hybrid § 301/fair representation’ suit.” Id. at 287–88 (quoting
DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164–65, 103 S. Ct.
2281, 2290–91 (1983)). To succeed on such a claim, a plaintiff must prove
both that the employer violated the CBA and that the union breached its duty.
See Gibson v. U.S. Postal Serv., 380 F.3d 886, 888 (2004).
Appellant’s complaint states a single cause of action for “Breach of
Contracts/Breach of Duty of Fair Representation” in violation of Section 301
of the LMRA. Cornerstone argued in its motion for summary judgment that
this cause of action failed because Appellant did not demonstrate the Union
breached its duty of fair representation. Appellant’s entire response
consisted of two conclusory sentences: “Because of the facts and arguments
[made in support of Cooper’s age discrimination claims], Cooper did not
commit an unsafe act when he operated his crane on January 27, 2020[.]
Cornerstone breached the LCA when it fired him on February 3, 2020.”3
The district court thus granted summary judgment for Cornerstone, holding
3
In a separate section, Appellant argued “the union breached its duty of fair
representation by not pursuing grievances on [Cooper’s] behalf.” Appellant has since
abandoned this argument.
5
Case: 22-30312 Document: 00516673179 Page: 6 Date Filed: 03/10/2023
No. 22-30312
Appellant had “not demonstrated that Local USW 13-447 breached its duty
of fair representation, an essential element of [her] section 301 claim.”
Appellant, for the first time in her motion for reconsideration and now
on appeal, contends she does not have to prove the Union breached its duty
of fair representation because the LCA precluded Cooper’s use of the CBA’s
grievance and arbitration procedures. Appellant has forfeited this argument.
See U.S. Bank, 761 F.3d at 426; United States v. Scroggins, 599 F.3d 433, 447
(5th Cir. 2010) (“We have often stated that a party must ‘press’ its claims.
At the very least, this means clearly identifying a theory as a proposed basis
for deciding the case—merely ‘initmat[ing]’ an argument is not the same as
‘pressing’ it.” (internal citations omitted) (alterations in original)). But even
if Appellant did not, Cooper’s admitted failure to turn off the crane in
violation of company policy provided Cornerstone ample ground to
terminate him pursuant to the LCA.4 See Doctor’s Hosp. of Jefferson, Inc. v.
Se. Med. Alliance, Inc., 123 F.3d 301, 307 (5th Cir. 1997) (court may affirm on
any grounds supported by record and argued in district court).
In short, the district court correctly granted summary judgment
against Appellant on her LMRA claim.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
4
As noted above, Appellant did not challenge this conclusion in her response to
Cornerstone’s motion for summary judgment and therefore forfeited any argument to the
contrary. See U.S. Bank, 761 F.3d at 426.
6